In the light most favorable to the
state, these are the facts, taken from the victim's testimony and from others'
testimony about her description of the events in the days immediately after
they occurred. At the time of the charged acts, the victim was 14 years old.
Defendant, a 27-year-old friend of the victim's mother, was living in the
victim's family's home.

After rubbing her back on the outside
of her shirt, defendant took hold of the victim's hand, placing it between
them. Defendant "asked her about her last boyfriend, and asked her if she
ever had sex with him." The victim told defendant "that she hadn't
had a boyfriend, and he asked her if she wanted--she wanted him to help her get
over her fears * * *." She told him no. Despite her answer, defendant
"grabbed her hand and forced it down his pants," making her feel his
erect penis.

The victim said no again, pulled her
hand away, rolled over on her stomach, and turned her head away from
defendant. He remained in her bed, however, and began rubbing her back again,
this time under her shirt, focusing on the area from the middle to lower back.
He then reached under her pants and touched her buttocks. After a few seconds,
the victim "told him no, and kind of scooted over towards the wall,"
and defendant removed his hand.

Defendant told the victim five or six
times that she could not tell anyone about the incident and that, if she did,
he would hurt someone close to her. After about 10 minutes, defendant got out
of the victim's bed and left her room.

The victim did not want defendant in
her bed. She would not have put her hand down defendant's pants of her own
volition, nor did she want to have defendant's hand down her pants.

Defendant was charged with
first-degree sexual abuse as to both incidents--(1) causing the victim to touch
his penis and (2) touching the victim's buttocks. As pertinent here, ORS
163.427(1) provides:

"A person commits the crime of sexual abuse
in the first degree when that person:

"(b) A threat, express or implied, that
places a person in fear of immediate or future death or physical injury to self
or another person, or in fear that the person or another person will
immediately or in the future be kidnapped."

Defendant contends that there is
insufficient evidence of physical force as to both counts. In his view,
although the statute does not require that the victim must resist the offender,
in order "to commit sex abuse in the first degree by forcible compulsion
involving physical force, an offender must apply strength or energy to the
victim's body that overcomes the victim's unwillingness or resistance to engage
in sexual contact." He contends that there was no evidence that would
allow a rational trier of fact to find that defendant used physical force to
overcome any resistance or unwillingness to engage in the sexual contacts.

The state responds that defendant's
argument implicitly assumes that the victim must resist in some way, but the
legislature expressly removed the requirement of resistance from the definition
of "forcible compulsion." The state argues that "forcible
compulsion by means of physical force occurs when a person obtains a response
by using strength or power of any degree, without justification or contrary to
law." In the state's view, the evidence was sufficient for the jury to
find that defendant used forcible compulsion.

This case presents a question of
statutory interpretation. To discern legislative intent, we begin by examining
the statutory text and context and, if it appears useful to the analysis, any
legislative history offered by the parties. State v. Gaines, 346 Or
160, 171-72, 206 P3d 1042 (2009). Because ORS 163.427(1) requires both
"sexual contact" and "forcible compulsion," the element of
"forcible compulsion" is distinct from the element of "sexual
contact"--that is, "forcible compulsion" means something more
than a physical touch to which the victim does not consent. Here, the presence
of "forcible compulsion" also separates the crimes of first-degree
and third-degree sexual abuse. ORS 163.427(1); ORS 163.415(1). We conclude
that, under the plain meaning of ORS 163.427 and ORS 163.305, physical force
constitutes forcible compulsion if it is sufficient to compel the victim to
engage in or submit to sexual contact.

Both "compel" and
"compulsion" communicate a sense that a person is forced to do or to
submit to something against her will. The noun "compulsion" commonly
means:

"1 a : an act of compelling : a driving
by force, power, pressure, or necessity * * * <acting under ~, not on his
own free will> b : a force or agency that compels * * * c : a
condition marked by compelling, by forced action or assent <peonage is
service to a private master at which a man is kept by bodily ~ against his will
* * *>."

"1 : force, drive, impel: as a : to force by physical necessity or
evidential fact * * * 2 a : to force or cause irresistibly : call
upon, require, or command without possibility of withholding or denying * * * 3
a : to domineer over so as to force compliance or submission :
demand consideration or attention <nobody
will ~ you; you are
perfectly free * * *>
b : to obtain (a response) by force, violence, or coercion <~ assent at the point of a gun>."

Id. at 463.

That sense is consistent with the
idea of compulsion by "physical force." "Physical"
commonly means "of or relating to natural or material things as opposed to
things mental, moral, spiritual, or imaginary : material, natural * * * of or relating to the body <~ strength> -- often opposed to mental."
Id. at 1706. The common meaning of the term "force" includes:

"1 a : strength or energy esp. of an exceptional
degree : active power : vigor * * * c
: power to affect
in physical relations or conditions <the
~ of the blow was
somewhat spent when it reached him>
<the rising ~ of the wind> * * * 3 a : power,
violence, compulsion, or constraint exerted upon or against a person or thing *
* * b : strength or power of any degree that is exercised without
justification or contrary to law upon a person or thing c : violence or
such threat or display of physical aggression toward a person as reasonably
inspires fear of pain, bodily harm, or death."

Id. at 887. Thus, "physical force" commonly
refers to a material or bodily strength or power that is exerted against a
person.

The word "force" is close
in meaning to the word "compulsion." A usage note lists as synonyms
for the noun "force" the words "violence, compulsion, coercion, duress, constraint,
restraint" and
goes on to explain that

"force is
a general term for exercise of strength or power, esp. physical, to overcome
resistance <there
is the force used by parents when . . . they compel their children to
act or refrain from acting in some particular way. There is the force
used by attendants in an asylum when they try to prevent a maniac from hurting
himself or others. There is the force used by the police when they
control a crowd . . . there is the force used in war --Aldous Huxley>
* * * compulsion
is applicable
to any power or agency that compels, that makes an individual follow a will not
his own <compulsion exists where a being is
inevitably determined by an external cause --Frank Thilly > <masterpieces
I read under compulsion without the faintest interest --Bertrand
Russell>."

The level of physical force that is
sufficient to cause a victim to engage in sexual contact against the victim's
will depends on the circumstances of the offense, including the characteristics
of the assailant and the victim and the relationship between them; the
assailant's conduct leading to the offense; and the time and location of the
offense. The level of force that is sufficient to overcome the victim's will
is lower in some circumstances than in others.

The more mechanical test proposed by the
dissent finds no support in the statutory text. The formulation that
"physical facilitation" includes situations "where the victim
could not avoid the sexual contact because of the application of force,"
___ Or Appat ___ (Sercombe, J., dissenting) (slip op at 4), implicitly
imposes the very resistance element that the legislature abolished. And the
interpretation that the statute requires "a distinct application of
physical force on the victim that allows the sexual contact to occur," id.
at ___ (slip op at 1), does not account for the plain meaning of compulsion.
The statute does not require that the physical force make the sexual contact
"likely," id. at ___ (slip op at 4), nor does it require a
measurement of physical force in mathematical terms. Rather, the statute
requires that the victim was subjected to forcible compulsion. Compulsion
means that the victim was made to follow a will not her own, and the physical
force in a particular case must be sufficient to compel the victim. To assess the
effect of physical force on the victim--that is, to determine whether, in a
particular case, the victim was compelled by physical force--a jury may
consider the circumstances surrounding the offense. An interpretation that
treats physical force as an abstract, mechanical concept is inconsistent with
the statutory text and shifts the focus away from the question of compulsion to
inquiries such as whether the defendant "could just as easily have touched
the victim's buttocks" with or without some other physical acts, id.
at ___ (slip op at 5).

Here, considering the totality of the
circumstances, a jury could find that defendant subjected the victim to
"forcible compulsion," compelling her by physical force to submit to
both incidents of sexual contact. The incidents happened within a relatively
short period of time, during which the victim was frightened and confused. As
to the first incident, in which defendant caused the victim to touch his penis,
the jury could find that defendant used physical power to control the victim's
movements and ultimately to force her hand down his pants. Initially, he was
"on top of her" and was "trying to kiss her on the face,"
while she "kept telling him no, trying to push him away." Defendant
finally "grabbed her hand and forced it down his pants." From that
testimony, a jury could find that defendant used physical strength to restrain
the victim and then to move her hand into his pants against her will.
Accordingly, the first incident constituted first-degree sexual abuse.

Considering the totality of the
circumstances, the second incident began with defendant, an adult and a friend
of the victim's mother, on top of the victim, a 14-year-old girl, attempting to
engage her in sexual contact. When she resisted, he backed off to a degree,
but persisted in touching her (rubbing her back) and attempting to persuade her
to engage in sexual activity with him. He then returned to more active
efforts, forcing her hand down his pants and making her touch his erect penis.
Her unwillingness to engage in sexual contact did not deter him.

When the victim pulled her hand away
and rolled over onto her stomach, defendant continued his pursuit of sexual
contact with her. Although defendant may not have exerted a great deal of
physical strength beyond what he had already exerted, the jury could reasonably
find that, in context, his conduct--trapping the victim between himself and the
wall, forcing her to touch his erect penis, putting his hand on her lower back
and rubbing it beneath her shirt, and then reaching under the waistband of her
pants--constituted sufficient physical force to qualify as forcible compulsion
within the meaning of the statute.

Affirmed.

BREWER, C. J., concurring.

I concur in the majority's analysis
and ultimate conclusion that the trial court did not err in denying defendant's
motion for a judgment of acquittal on the second count charging him with
first-degree sexual abuse.

I write separately to state my view
that, but for the forcible compulsion that defendant exerted over the victim in
the first sexual contact, the evidence pertaining to defendant's ensuing
conduct did not suffice to permit a reasonable juror to find that defendant
exerted forcible compulsion over the victim in the second contact. That
ensuing evidence, in context, which included defendant's and the victim's ages,
and the nature of their relationship, defendant's location on the bed in
relation to the victim and the wall, his rubbing the victim's back, and the
eventual placement of his hand under her clothes and on her buttock, did not,
by itself, demonstrate the use of forcible compulsion.

However, in the broader context of
defendant's interaction with the victim while they were on the bed, including
the first instance of sexual abuse, a reasonable juror could find, for the
reasons explained by the majority, that defendant forcibly compelled the victim
to submit to the second sexual contact.

Although the issue of whether
consideration of that broader context of interaction is permissible has been
ably argued by the dissent, I believe that the majority has the better of the
argument. Accordingly, I concur.

Edmonds, S. J., joins in this
concurrence.

SERCOMBE, J., dissenting.

I disagree with the majority's
conclusion that the second sexual contact in this case, the touching of the
victim's buttocks by defendant, was compelled by physical force so as to
satisfy the "forcible compulsion" element of the crime of
first-degree sexual abuse under ORS 167.427(1). There was no physical force
used on the victim that allowed that sexual contact to occur. Defendant could
have just as easily touched the victim's buttocks at the time the crime was
committed whether or not he earlier had moved her hand or rubbed her back.
Defendant's positioning of his body next to the victim was not the use of
physical force against the victim. It is that positioning, and not any
physical interaction with the victim, that facilitated the sexual contact. In
my view, a case of sexual abuse in the first degree is made out, not by any
predicate and untoward touching of the victim as the majority implies, but by a
distinct application of physical force on the victim that allows the sexual
contact to occur. That is what the plain wording of ORS 163.427(1) requires.
Because defendant did not use physical force on the victim with that result, I
would reverse the conviction of sexual abuse in the first degree on the second
count and remand that part of the judgment for entry of judgment of conviction
of sexual abuse in the third degree and for resentencing.

Beyond the majority's misapplication
of the plain meaning of ORS 163.427(1), the vague test for "forcible
compulsion" employed by the majority, the "totality of the
circumstances" test, (1) unnecessarily blurs the distinction between the
misdemeanor crime of third-degree sexual abuse and the felony crime of
first-degree sexual abuse, a distinction of immense importance given the
difference in punishment for the two crimes; (2) equates any intimidating
conduct with "forcible compulsion," even though the legislature
specifically defines different types of "threats" to be acts of
"forcible compulsion"; and (3) allows the prosecution of two crimes
based on the same forcible compulsion in ways inconsistent with ORS 161.067, a
statute that requires distinct conduct for each crime.

Defendant was arrested and charged
with two counts of first-degree sexual abuse. The indictment alleged that the
crimes were committed by "forcible compulsion." ORS 163.427(1)
provides, in part:

"A person commits the crime of sexual abuse
in the first degree when that person:

"any touching of the sexual or other intimate parts of
a person or causing such person to touch the sexual or other intimate parts of
the actor for the purpose of arousing or gratifying the sexual desire of either
party."

ORS 163.305(2) defines "forcible compulsion":

"'Forcible compulsion' means to compel by:

"(a) Physical force; or

"(b) A threat, express or implied, that
places a person in fear of immediate or future death or physical injury to self
or another person, or in fear that the person or another person will be
immediately or in the future be kidnapped."

Thus, the charged crime required defendant to compel sexual
contact with the victim by physical force or threat.

The majority properly concludes that,
"[b]ecause ORS 163.427(1) requires both 'sexual contact' and 'forcible
compulsion,' the element of 'forcible compulsion' is distinct from the element
of 'sexual contact'--that is, 'forcible compulsion' means something more than a
physical touch to which the victim does not consent." __ Or App at __
(slip op at 4). Thus, a defendant's action in making or causing the sexual
contact is distinct from the application of physical force that constitutes
"forcible compulsion."

Subjecting a victim to "forcible
compulsion" is the distinguishing element between the sexual contact that
is part of the crime of sexual abuse in the third degree, ORS 163.415, and the
sexual contact that is part of the crime of sexual abuse in the first degree,
ORS 163.427. ORS 163.415(1) provides:

"A person commits the crime of sexual abuse
in the third degree if the person subjects another person to sexual contact
and:

"(a) The victim does not consent to the
sexual contact; or

"(b) The victim is incapable of consent by
reason of being under 18 years of age."

As noted, the crime of sexual abuse in the first degree
requires subjecting another person to both "sexual contact" and
"forcible compulsion." ORS 163.427(1)(a)(B). The difference between
both crimes is that sexual contact constitutes third-degree sexual abuse if it
is unwanted or without consent, whereas the sexual contact constitutes
first-degree sexual abuse if it is caused by forcible compulsion. Therefore,
"forcible compulsion" means something in addition to being without
consent.

I agree with the majority, then, that
"under the plain meaning of ORS 163.427 and 163.305, physical force
constitutes forcible compulsion if it is sufficient to compel the victim to
engage in or submit to sexual contact[,]" Or App at (slip
op at 4), and that "to compel a person by 'physical force' means to
exercise physical strength or power that causes the person to act or to submit
to being acted upon against the person's will," Or App at (slip
op at 4-5). Combining those thoughts, a sexual contact is compelled by
physical force when the sexual contact is made possible by the separate use of
physical strength or power on the victim. That physical facilitation test is a
matter of mechanics--did the use of physical force compel the sexual contact,
or did it make it likely that the sexual contact could occur? Examples of
physical facilitation in this sense could include holding the victim down in
order to allow sexual contact or otherwise physically constraining the victim
to the same effect, where the victim could not avoid the sexual contact because
of the application of force.

That type of physical force was not
used against the victim here to make defendant's touching of her buttocks
possible. At the time of that conduct, the victim was lying on her stomach
with her face turned away from defendant. Defendant was rubbing the victim's
back under her shirt and then slid his hand down the back of her pants
"for a few seconds and then [she] said no and he pulled his hand
out." Contrary to the prosecutor's assertions, there was no evidence,
including the victim's testimony, that defendant was "clutching" the
victim or exerting any kind of physical strength directed to the victim in
order to make the sexual contact more likely and to overcome potential
resistance. The victim did not testify that she was restrained by defendant's
actions in rubbing her back or that defendant moved her body or exerted any
physical force against her that compelled or caused her to act or to be
positioned in any way. In fact, the victim took steps to avoid further sexual
contacts after the applications of force against her. The victim turned to lie
on her stomach after the first sexual contact and moved away from defendant
immediately after the second sexual contact.

The majority recognizes that ORS
163.427(1) requires the use of physical force or threat against the victim that
"causes the person to act or to submit to being acted upon against the
person's will." ___ Or App at ___ (slip op at 7). And
it identifies three uses of physical force against the victim that preceded the
sexual contact in question: the initial physical contacts between defendant and
the victim (being "on top of her"); the movement of the victim's hand
to touch defendant's penis; and defendant's rubbing of the victim's back. Yet
none of those physical interactions made defendant's touching of the victim's
buttocks possible or necessarily allowed that sexual contact to occur. After
the first two physical contacts, the victim turned over on her stomach. After
that, defendant could just as easily have touched the victim's buttocks with or
without a backrub.

Instead of a facilitation test for
whether physical force compelled the sexual contact, the majority seemingly
adopts a post hoc ergo propter hoc test--an assumption that any
predicate physical interaction between defendant and the victim made the sexual
contact likely to occur. It then employs a "totality of the
circumstances" test to further qualify those predicate physical acts as
"forcible compulsion." Under the majority's logic, if a defendant
and a victim shook hands before the defendant groped the victim, the shaking of
hands might be forcible compulsion depending on the time of day, the location
of the offense, and whether there had been a predicate crime.

Although I agree that the degree
of physical force necessary to facilitate a sexual contact might depend on the
factual context of the crime, I do not concur that predicate acts are
categorized differently and become causative or compelling because of
the relationship between the parties or the time of day or because those acts
are crimes. Instead, the inquiry is one of physical facilitation alone--did
the application of force physically allow the sexual contact to be possible.
By that test, the previous hugging and rubbing of the victim, even the previous
sexual abuse, did not have any physical relationship to the touching of her
buttocks. That touching was neither made easier nor was the victim made more
likely to be touched by the previous physical interactions between defendant
and the victim. The victim had the same vulnerability to that touching as
she had when defendant first entered her bed, prior to the use of any force by
defendant. Therefore, the touching of the victim's buttocks was not
compelled by the use of physical force.

The broader "totality of the
circumstances" test for "forcible compulsion" advanced by the
majority--whether the physical interactions between the victim and defendant
and other circumstances made the victim feel oppressed--is inconsistent with
the definition of "forcible compulsion" set out in ORS 163.305(2).
Put simply, the definition requires physical force sufficient "to
compel" the victim to experience the sexual contact, not physical force
that, together with a number of other circumstances, makes the victim feel
intimidated. In fact, ORS 163.305(2) very explicitly details the particular
threatening or intimidating behavior of a defendant that constitutes
"forcible compulsion"--an "express or implied" threat
"that places a person in fear of immediate or future death or physical
injury to self or another person, or in fear that the person or another person
will be immediately or in the future be kidnapped." The "totality of
the circumstances" test for intimidating conduct employed by the majority
to define "forcible compulsion" expands the scope of ORS 163.305(2)
beyond its stated meaning.

The "totality of the
circumstances" test will be difficult to apply and the consequences of
that categorization are significant. As just noted, the existence of
"forcible compulsion" is the distinction between the misdemeanor
crime of third-degree sexual abuse and the felony crime of first-degree sexual
abuse. The maximum punishment for third-degree sexual abuse is a sentence of
one year in prison. ORS 161.615(1). If the sexual abuse occurs by means of
"forcible compulsion" so that a defendant could be punished for
first-degree sexual abuse, the defendant would serve a minimum of 75 months in
prison. ORS 137.707(4). A person with extensive criminal history could serve
up to 90 months in prison for conviction of first-degree sexual abuse, meaning
that the difference between the punishments for the two crimes is at least five
years of confinement but could be as much as six and one-half years in prison.

Suppose the need to apply the
"totality of the circumstances" test to the following factual
scenario--with five to six years in prison at stake in the application of that
test: a man and a woman voluntarily kiss at the end of their first social
date. Suddenly, the man gropes the woman's breast and she pushes him away.
Under my understanding of "forcible compulsion," the prior use of
physical force--the kissing of the woman by the man--did not make the groping
possible and the man's conduct would be third-degree sexual abuse, the making
of an unwanted sexual contact.

Under the majority's "totality
of the circumstances" test, the inquiry is much more subtle and would
depend on whether the kissing could be oppressive in any way. That, in turn,
would depend on the age difference between the parties, the time of day,
whether the man had acted boorishly previously, and perhaps a number of other
factors that are not apparent. I do not believe that the legislature intended
the consequence of potentially 20 years in prison--the difference in punishment
between the crimes of third-degree and first-degree sexual assault--to rest on
the elusive and subjective classification suggested by the majority.

Finally, there are problems with the
application of the "totality of the circumstances" test when--as
here--the key circumstance is the prior commission of the same crime. The
majority suggests that defendant is accountable for committing the crime of
first-degree sexual abuse by the buttocks touching largely because of the
forcible compulsion involved in the first sexual abuse charge, defendant's
movement of the victim's hand to touch his penis. The common fact for both
crimes--that act of forcible compulsion--raises issues of merger under ORS
161.067(3). Under that statute, when there are repeated violations of the same
statutory provision in a criminal episode that involves one victim, each
violation, in order to be separately punishable, "must be separated from
other such violations by a sufficient pause in the defendant's criminal conduct
to afford the defendant an opportunity to renounce the criminal intent."
That provision has been interpreted by the Supreme Court to mean that "one
crime must end before another begins." State v. Barnum, 333 Or
297, 303, 39 P3d 178 (2002), overruled on other grounds by State v. White,
341 Or 624, 147 P3d 313 (2006). Whether a single forcible compulsion for both
sexual contacts allows the second violation to begin after the first violation
has ended is not clear. The issue, however, suggests that defendant's conduct
is better classified as constituting different crimes--first-degree sexual abuse
and third-degree sexual abuse--in the absence of separate acts of forcible
compulsion.

In sum, I dissent because the
majority errs, in my view, in broadening the meaning of "forcible
compulsion" beyond physical interactions with the victim that allow the
sexual contact to occur. The broader meaning advanced by the majority--whether
physical actions together with other circumstances make the victim feel
intimidated--is inconsistent with the text of ORS 163.305(2) and is difficult
to apply fairly. I believe the case should be remanded for resentencing on the
second count, rather than affirmed. The jury's verdict necessarily found the
elements of third-degree sexual abuse, ORS 163.415(1)(a) on the second count, a
lesser-included offense of first-degree sexual abuse by forcible compulsion.
Accordingly, the proper disposition should be to enter a judgment of conviction
for the lesser-included offense of third-degree sexual abuse. Or Const, Art
VII (Amended), § 3; ORS 136.465; see, e.g., State v. Conklin, 214
Or App 80, 162 P3d 364 (2007) (remanding for entry of judgment on
lesser-included offense of delivery of a controlled substance where trial court
erred in denying judgment of acquittal on charges of delivery of a controlled
substance within 1,000 feet of a school).

Armstrong, J., joins in this dissent.

1.Defendant also
assigns error to the imposition of consecutive sentences. His arguments on
that assignment are disposed of by Oregon v. Ice, ___ US ___, 129 S Ct
711, 172 L Ed 2d 517 (2009).

3."Sexual
contact" refers to "any touching of the sexual or other intimate
parts of a person or causing such person to touch the sexual or other intimate
parts of the actor for the purpose of arousing or gratifying the sexual desire
of either party." ORS 163.305(6).

4.We do not
hold or imply, as the dissent contends, ___ Or App at ___ (Sercombe, J.,
dissenting) (slip op at 1), that "any predicate and untoward
touching of the victim" is sufficient to make out a case of first-degree
sexual abuse, nor do we "equate[ ] any intimidating conduct with 'forcible
compulsion,'" id. at ___ (slip op at 2), or focus on whether the
victim felt "oppress[ed]" or "intimidated," id. at
___ (slip op at 7, 9). Physical strength or power constitutes forcible
compulsion only when it causes the victim to act or submit to being acted on
against her will. Accordingly, the examples such as the "shaking of
hands" or voluntary kissing suggested by the dissent, id. at ___
(slip op at 6, 8), are unlikely to meet that standard.

5.The dissent
contends that considering the totality of the circumstances raises concerns
about merger under ORS 161.067(3) (providing that, when a criminal episode
involves repeated violations of the same statutory provision against the same
victim, each violation "must be separated from other such violations by a
sufficient pause in the defendant's criminal conduct to afford the defendant an
opportunity to renounce the criminal intent" to be separately
punishable). ___ Or App at ___ (Sercombe, J., dissenting) (slip op at 8-9).

In this case, defendant has not argued that
separate judgments of conviction could not be entered as to each incident of
sexual contact. As a factual matter, there was a pause--which began when the
victim said no, pulled her hand away, and rolled away from defendant--between
the two instances of sexual contact.

As a matter of statutory interpretation, the
dissent's interpretation imposes a simultaneity requirement--that is, that the
victim must be subjected to an instance of physical force at the same time as
each sexual contact--that is unsupported by the statutory text. The statute
requires only that the victim be compelled by physical force. A single act may
compel a victim to submit to multiple sexual contacts. For example, if a defendant
bound a victim and then engaged in multiple nonconsensual sexual contacts, it
would seem beyond dispute that the victim had been subjected to ongoing
forcible compulsion in each incident of sexual contact. If a defendant struck
a victim and the victim submitted to multiple sexual contacts to avoid being
struck again, a jury could conclude that, with a single blow, the defendant
compelled the victim to submit to each sexual contact. In such cases, a
question may arise as to the sufficiency of the pause between each contact.
But our interpretation of ORS 163.427 does not create the merger
question; that question arises because of the nature of the merger inquiry
under ORS 161.067(3).